Capacity and consent

The Supreme Court of Canada released a decision yesterday in the case of R. v. G.F., 2021 SCC 20. The case addresses the issues of consent and capacity to consent.

In order to secure a conviction for sexual assault, the Crown needs to prove a lack of consent beyond a reasonable doubt. One of the ways this can happen is if the complainant was incapable of consenting. In the G.F. case, the Crown argued that the complainant was extremely intoxicated and could not consent to sex. They also argued that even if the complainant was capable of consenting, she had expressed non-consent. Whether due to incapacity to consent, or the expression of non-consent, the Crown argued that the sex was non-consensual and therefore a sexual assault.

In this case, the Supreme Court of Canada made it clear that consent and capacity to consent are inextricably linked and that they do not need to be considered separately. The capacity to consent is a necessary but not sufficient precondition to the complainant’s subjective consent. In other words, if the complainant is too intoxicated to consent, then there is no way for the sexual activity to be consensual. The judge does not need to consider the two issues separately or in any particular order to make that determination.

The Court also listed four things that a complainant must be capable of understanding in order to be capable of consenting to sex:

1. the physical act;
2. that the act is sexual in nature;
3. the specific identity of the complainant’s partner or partners; and
4. that they have the choice to refuse to participate in the sexual activity.

The Crown only needs to prove the absence of one of those factors beyond a reasonable doubt to prove that the complainant was incapable of subjective consent and that there was no consent to the sexual activity. This case is a good reminder that intoxication can make it impossible for someone to consent to sex and that the only thing separating lawful sexual activity from sexual assault is whether or not both partners are subjectively consenting to participate in it.